Alshayk (Migration)

[2018] AATA 5604

Alshayk (Migration) [2018] AATA 5604 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mahdi Abdulhusain Saleh Alshayk

CASE NUMBER:  1620433

HOME AFFAIRS REFERENCE(S):           CLF2016/35069

MEMBER:Kira Raif

DATE:29 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.225 of Schedule 2 to the Regulations

Statement made on 29 November 2018 at 10:16am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – police clearance certificate required from sponsor – visa applicant attained age of 18 – relevant public interest criterion no longer applies – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20KB; Schedule 2, cl 802.225; Schedule 4, PIC 4018

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 November 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Iraq, born in April 1999. He applied for the visa on 8 June 2016. The delegate refused to grant the visa on the basis that cl.802.225 was not met because the delegate found that the applicant did not meet PIC 4018. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative).  In this case, claims have only been made in respect of Subclass 802 (Child).

5. The criteria to be met in this case include cl.802.225. It requires that if the applicant has not turned 18, Public Interest Criterion 4017 and 4018 must be met

   Does the applicant satisfy the relevant Public Interest Criteria?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the delegate assessed the applicant against PIC 4018 and, for the purpose of r. 1.20KB, the sponsor was requested to provide a police clearance certificate to ensure there were no convictions. As the sponsor failed to provide the police certificate, the delegate was not satisfied that r. 1.20KB was met and concluded that the applicant did not meet PIC 4018 for the purpose of cl.802.225.

7. The applicant was born in April 1999. At the time of this decision, the applicant has turned 18. As such, the Tribunal finds that PIC 4017 and 4018 no longer apply to the applicant. The Tribunal finds that the applicant meets cl. 820.225.

   Conclusion

8. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

9. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

   ·cl.802.225 of Schedule 2 to the Regulations

   Kira Raif
   Senior Member